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HomeMy WebLinkAboutPeacock 01-04-06 O0~S'g I ,~ CS') IN THE MATTER OF AN ARBITRATION L...C)C,.C::~ i ~,~ L.~ BETVVEEN: GEORGIAN COLLEGE OF APPLIED ARTS AND TECHNOLOGY AND ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 349 AND IN THE MATTER OF THE GRIEVANCE OF J. PEACOCK OPSEU GRIEVANCE #00A371 BOARD Of ARBITRATION' MAUREEN K. SALTMAN, CHAIR ROBERT J. GALLIVAN, COLLEGE NOMINEE SHERRIL MURRAY, UNION NOMINEE APPEARANCES: FOR THE COLLEGE: ROBERT J. ATKINSON FOR THE UNION: MARY ANNE KUNTZ 1 AWARD This case involves a claim for two days' personal leave with pay in March, 2000 under Article 12.2 of the collective agreement, which is to the following effect: 12. LEAVES 12.2 Personal Leave With Pay Recognizing the over-riding responsibility to the students, leave of absence will be scheduled where possible to ensure a minimum of disruption to the educational programs and services of the College. Reasonable notice shall be given to the Supervisor concerned. Leave of absence for personal reasons, religious leave and special leave in extenuating personal circumstances may be granted at the discretion of the College without loss of pay and such requests shall not be unreasonably denied. The Grievor, Jillian Peacock, who is employed as a Programme Analyst in the Computer Services Department, commenced employment with the College on July 3, 1983. The Grievor has never previously requested personal leave with pay. ~ The Grievor is a single mother of three children. At the relevant time, her children were 7, 8 and 10 years old. In the middle of the week of March 13, 2000, the Grievor's 8-year-old daughter began complaining of a sore throat, which the Grievor treated with Triaminic, an over-the-counter medication. By 2 Sunday, however, her throat was much worse and so the Grievor took her to a walk-in clinic. The doctor at the clinic did a throat swab and told the Grievor that the results would be provided to her family doctor. On Monday and Tuesday, the child's symptoms were about the same as on Sunday. By Wednesday morning, however, her throat appeared much more swollen and so, between 7:30 and 8:00 a.m., the Grievor took her to the emergency department of the Royal Victoria Hospital. As it was before the start of the school day, she took her sons .along. Before leaving for the hospital, the Grievor left voice mail messages for the two support staff in her department indicating that she had taken her daughter to the emergency department. After a brief wait, the child was seen by an emergency physician, who indicated that her throat was inflamed and did another throat swab. He also gave the Grievor a prescription for her daughter and examined her younger son, who had a fever and was complaining of a stomach ache and nausea. The Grievor left the hospital at around 9:00 a.m. and went to the pharmacy with her daughter's prescription. While she was waiting for the prescription to be filled, she called her former husband and asked if he could look after the children. According to the Grievor, her husband indicated that he had to go to work at 2:00 p.m., but agreed to look after the children until 1:00 o'clock. Accordingly, the Grievor dropped the children off with her husband and went to work. She got there between 10:00 and 10:30 a.m. As pre-arranged, she left work at around 1:00 p.m. to pick up her children. Some time later in the day, the Grievor got the 3 results of the throat swab which had been done on Sunday, which confirmed that her daughter had strep throat. The Grievor testified that she has daycare arrangements for her children after school and in the summer. Furthermore, when her children are ill, she can take them to daycare, although daycare will not accept them if they are vomiting, or suffering from a viral infection or other contagious illness. Accordingly, had it not been for her daughter's strep throat, ,she could have taken her to daycare on Wednesday. However, as daycare was not an option, and as she has no family in the community, she testified that had no alternative but to stay home and care for her children. On Thursday, her sons went back to school (although the older boy was not sick, he had stayed home on Wednesday with the other children). As her daughter was still sick, the Grievor stayed home until noon. However, as she had deadlines to meet, a friend helped out by taking a half-day of vacation leave to look after her daughter, thereby enabling the Grievor to return to work in the afternoon. By Friday, her daughter was feeling better, although she was still on antibiotics and so the Grievor took her to work that day. The following Monday, March 27th, although the Grievor's daughter had recovered, her older son woke with symptoms of stomach flu (vomiting, nausea, etc.). For this reason, he could not attend daycare and so the Grievor 4 stayed home to take care of him. The Grievor notified the departmental secretary, Marg Hockley, of her absence and requested personal leave with pay to cover the period of absence (two half-days for Wednesday, March 21st and Thursday, March 22nd and one full day for Monday, March 27th). Some time later, she was told by Ms. Hockley that Human Resources had advised that personal leave with pay was reserved for fire, flood and snowstorms, and that it was not College policy to grant personal leave with pay for family illness. This advice was given by Sylvia Priest, a Human Resources clerk. Subsequently, the Grievor contacted Human Resources Consultant, Joyce Goheen, and testified that Ms. Goheen confirmed the advice given by Ms. Hockley, i.e., that these days were set aside for fire, floods, snowstorms and the like and, further, that it was not College policy to use these days as "family sick days". In cross-examination, the Grievor acknowledged that Ms. Goheen had indicated that the College tries to be reasonable in assessing whether there are extenuating personal circumstances and that fire and flood were examples of such circumstances. For her part, Ms. Goheen testified that she initially received a voice mail message from the Grievor advising that she was at home; that her children were ill and that her departmental secretary had contacted someone in Human Resources, who indicated that personal leave with pay was only granted in extenuating personal circumstances. The following day, Ms. Goheen called the 5 Grievor to discuss the matter. After listening to a brief description of the Grievor's circumstances, Ms. Goheen said that the College tries to be fair and reasonable in assessing whether there are extenuating personal circumstances and considers each request individually. However, from the Grievor's description, it did not sound as if there were extenuating personal circumstances in this case. Ms. Goheen then provided some examples where personal leaves with pay had been approved, including a circumstance in which an employee was required to deal with a flood in her home; a circumstance in which an employee had to attend at the bedside of her father, who had been hit by a car and was flown to a Toronto hospital in critical condition; and a circumstance in which an employee was required to take her child to the Hospital for Sick Children in Toronto to undergo medical tests for a potentially serious illness. Ms. Goheen then suggested a number of options which were available to ensure payment in the event that personal leave with pay was denied for the days in question, including utilising personal sick days. In this regard, Ms. Goheen testified that the faculty collective agreement had been amended to allow members to use up to five days from their personal sick leave banks to cover some of the more common Yamily circumstances, such as childhood illnesses, eldercare, etc., which the College felt were not extenuating personal circumstances. Although there is no comparable provision in the support staff collective agreement, this option' has been extended to administrative and support staff as well. Apart from the use of her personal sick leave bank, Ms. 6 Goheen suggested that the Grievor utilise her accumulated vacation leave, access her lieu time bank or make up the time after the fact (in the event she had no accumulated lieu time). Finally, if none of these options was available, she could request an unpaid leave of absence. Although the Grievor assumed that Ms. Goheen had already made the decision to deny her request for personal leave with pay, Ms. Goheen testified that no decision had been made. In fact, Ms. Goheen understood the Grievor's conversation to be an inquiry as to the College's practice and not a request for leave. Accordingly, when the Grievor left a voice mail message asking for the College's decision in writing, Ms. Goheen directed her to submit a written request to her immediate Supervisor and indicated that a decision would be made by the Supervisor in consultation with Human Resources. However, the Grievor submitted the request directly to Ms. Goheen. Ms. Goheen testified that, notwithstanding that the proper procedure had not been followed, she reviewed the request, which provided more detail than the brief description she had been given over the telephone. FolloWing consultation with the other Human Resources Consultant, Ms. Goheen made the decision to deny the Grievor's request. The basis for the decision, as set out in a memorandum dated April 5, 2000, was that the circumstances described in the Grievor's written request did not constitute extenuating personal circumstances. In addition, the memorandum indicated · that leave was requested after the fact. However, Ms. Goheen testified in these proceedings that the'timing of the request did not form the basis for her decision. With respect to the matter of extenuating personal circumstances, Ms. Goheen testified that common childhood illnesses, such as throat infections, are not extenuating personal circumstances, but had to be expected when one has children and backup plans have to be in place to deal with these circumstances. Moreover, in contrast to the other circumstances in which personal leaves had been granted (attending at the bedside of a critically ill parent in a Toronto hospital; taking a child to a Toronto hospital for medical tests), in this case, there was no travel involved. As well, the Grievor's personal attendance was not required; someone else could have provided childcare in her place. Apart from the reason for denying the Grievor's request in this case, Ms. Goheen testified that extenuating personal circumstances tend to be unexpected, unusual and/or more serious than normal childhood illnesses. She also testified that it is not only the nature of the illness which is taken into account in assessing extenuating personal circumstances, although the presence or absence of accumulated sick leave credits, vacation leave credits or lieu time and/or the financial impact of the denial of leave are not taken into account in assessing such circumstances. Although the Grievor was asked in the memorandum of April 5th to specify how she wanted the two days' absence credited, she did not respond. Accordingly, the College deducted two and one-half days from the Grievor's accumulated sick leave bank (although she had been absent for only two days). The Union submitted that Article 12.2 provides for religious leave (which has no application in the circumstances of this case), leave for personal reasons and special leave in extenuating circumstances, and that extenuating circumstances are those which are unexpected and hard to adapt to on a moment's notice. In this case, the circumstances in which the Grievor found herself on Wednesday, March 22nd came within the purview of Article 12.2 because, although her daughter had been sick for several days, her condition worsened by Wednesday. Moreover, although the Grievor had daycare arrangements when her children were ill, these arrangements were not available when a child was vomiting or had a viral infection. As well, the Grievor enlisted the assistance of the children's father on the first day, a friend on the second and took her daughter to work on the third. As the Grievor's circumstances came within the broad wording of Article 12.2 and, as the collective agreement contains an admonition that leave not be unreasonably denied, the Union submitted that the College would have to demonstrate a compelling reason for denying the Grievor personal leave with pay. The Union further submitted that if Article 12.2 were restricted to circumstances which are serious, life threatening or catastrophic, employees in circumstances such as those at hand would be required to indemnify themselves against loss of salary by the use of earned credits, which could not have been intended. Furthermore, although the College 9 offered to accommodate the Grievor by allowing her to use of sick leave credits to cover the period of absence, the collective agreement makes no provision for the use of sick leave to cover family illness. Moreover, rather than accommodating the Grievor, the depletion of sick leave credits would diminish her ability to indemnify herself against loss of pay in periods of personal illness. Therefore, extending the use of sick leave credits to circumstances of family illness does not provide a benefit to employees, but avoids the application of Article 12.2, which ought to be available when there is conflict between an employee's work responsibilities and parental responsibilities. Moreover, the Union submitted that the exercise of discretion .,~ ~:. requires that each case be assessed on its merits and without regard to any pre- "~ ? determined policy. In this case, the College adhered to a policy which excluded normal childhood illnesses from the purview of Article 12.2. Although the Union did not take the position that childhood illnesses automatically entitle one to coverage under Article 12.2, the Union maintained that the College cannot adhere to a rigid policy which unreasonably fetters its discretion under Article 12.2 or exercise its discretion in an unfair or discriminatory manner. Accordingly, in this case, the College could not exclude the possibility that extenuating personal circumstances might arise .even in relation to childhood illnesses. For its part, the College acknowledged that the Grievor was absent for legitimate reasons on the days in question. Nevertheless, the College 10 submitted that the issue is not the legitimacy of the Grievor's absence but whether the College exercised its discretion unreasonably in denying the Grievor's request for personal leave with pay under Article 12.2. In this regard, the College submitted that there were no extenuating personal circumstances requiring the exercise of discretion under Article 12.2. Specifically, the College submitted that extenuating circumstances are generally of an unusual or emergency nature and beyond the employee's control. Common childhood illnesses, in contrast, are to be expected when one has children and backup plans have to be in place to deal with these circumstances. Accordingly, it was submitted that the Grievor ought to have anticipated the possibility that her daughter's throat infection might worsen and that she would have to stay home from school. Nevertheless, it would appear that the Grievor made no arrangements to deal with this contingency. In any event, it was submitted that, even if there were extenuating circumstances, it cannot be concluded that the College exercised its discretion improperly in denying personal leave with pay. The College further submitted that the Board ought to defer to the exercise of management's discretion in denying the Grievor's request for leave with pay under Article 12.2, unless it finds that the College exercised its discretion unreasonably. In this regard, it was submitted that the scope of the Board's inquiry is limited to determining whether the College considered the Grievor's request for leave on its merits or fettered its discretion under Article 12.2 by adhering to a rigid or pre-determined policy. 11 Furthermore, the exercise of the College's discretion must be assessed on the basis of facts which were available to the College at the time it arrived at its decision. It was submitted, as well, that in this case the College considered the Grievor's request for leave with pay on its merits and without regard to any pre- determined policy. In fact, there was no basis upon which to conclude that family illnesses are excluded from consideration under Article 12.2. Indeed, two of the circumstances in which personal leave with pay has been granted involved family illness. Finally, the College maintained that it gave reasonable consideration to the Grievor's application for leave with pay under Article 12.2, which satisfied its obligation in this case. · -~ The Union submitted, by way of reply, that all of the facts which were proven in this case were available to the College at the time it arrived at its decision on the Grievor's application for leave with pay under Article 12.2. The issue is whether, in all of the circumstances, the Grievor ought to have been granted personal leave with pay pursuant to Article 12.2 of the collective agreement. Subject to the College's overriding responsibility to provide educational programmes with minimal disruption to students, Article 12.2 provides for leave with pay for "personal reasons, religious leave and special leave in extenuating personal circumstances". Although the clause indicates that 12 leave "may be granted at the discretion of the College", it also contains an admonition that leave "shall not be unreasonably denied". In this case, the Grievor was absent for one-half day on each of Wednesday, March 21st and Thursday, March 22nd and one full day on Monday, March 27th to care for her children who were successively ill during the period in question. Although there was no dispute as to the legitimacy of the Grievor's absence on each of these occasions, the College took the position that there were no extenuating personal circumstances which required the exercise of discretion under Article 12.2. As to the existence of extenuating personal circumstances, consideration should be given not only to the severity of the ~.-- illness, but also to the efforts that were made to make alternate arrangements for ~' the temporary care of the sick family member. In this case, all three of the Grievor's children suffered from apparently unrelated ailments in the period from March 21st and March 27th. Although the illnesses were not especially severe, the evidence indicates that her daughter was unable to attend school on Wednesday and Thursday; her younger son, on Wednesday; and her older son, on the following Monday. Given the nature of the illnesses (involving viral infections and vomiting), daycare arrangements were unavailable. Although the College submitted that the Grievor ought to have anticipated that her daughter's throat infection might worsen and made backup arrangements to deal with this contingency, it took a week before the infection progressed to the point where she had to be home from school. Her sons' illnesses were even more unpredictable, both boys apparently having taken ill without, prior warning. Moreover, this is not a case where the Grievor had no arrangements in place in the event her children took ill during the school year. In the ordinary course, the Grievor had daycare arrangements, although daycare was not available when her children were vomiting or suffering from a viral infection. As the Grievor's children fell within these restrictions, she attempted to make arrangements for their care, at least in the first week. More particularly, she enlisted the assistance of her ex-husband on Wednesday and of a friend, who took a half-day of vacation leave, to look after her children on Thursday. On Friday, although it was not entirely clear that her daughter needed to be off school, the Grievor brought her to work. By Monday, 'her older son was ill and, as his circumstances also fell within the range of illnesses that daycare could not accommodate, she decided to take care of him herself. Unlike the previous week, there was no evidence of any attempt to make a~ternate arrangements for his care. Based on the need for the Grievor's children to be off school and the efforts to make alternate arrangements for their care, the Board is of the view that the Grievor satisfied the criterion for personal leave with pay for Wednesday, March 21st and ThUrsday, March 22nd. However, the same cannot be said in respect of Monday, March 27th, when there was no indication that. the Grievor made any effort to make alternate arrangements to provide for her son's care. In these circumstances, the Board is unable to conclude that there were extenuating personal circumstances on Monday. However, as such circumstances existed on Wednesday and Thursday, the issue which then arises is whether the College exercised its discretion unreasonably in denying personal leave with pay in respect of these days. There was no dispute that sick leave was granted for the days in question, although the Grievor claimed entitlement to personal leave with pay under Article 12.2 in respect of these days. With regard to this provision, although the children's illnesses were not particularly egregious, it has been found that the Grievor made reasonable efforts to provide for their care on Wednesday and Thursday. Moreover, while the College might not have adopted a rigid policy, it seems clear that it was not favourably disposed to granting .~.... personal leave with pay for common childhood illnesses (although personal leave ...... with pay has been granted in more serious circumstances, involving critical injury and medical tests for a family member, where travel was required). In this regard, Ms. Goheen acknowledged in cross-examination that she could not think of a circumstance involving a common childhood illness that might have been acceptable to the College and that such illnesses are not typically covered by the provision respecting personal leave with pay. The Board is also not satisfied that adequate consideration was given to the efforts by the Grievor to make alternate arrangements for her children's care on Wednesday and Thursday. In these circumstances, it is the Board's view that personal leave with pay was unreasonably denied for Wednesday and Thursday. However, as there were no extenuating personal circumstances, we also take the view that personal leave with pay was not unreasonably denied for the following Monday. In the result, the grievance is allowed in part. The Board directs that the Grievor be granted one-half day of personal leave with pay for each of Wednesday, March 21st and Thursday, March 22nd and that one day be restored to the Grievor's accumulated sick leave bank. The Board will remain seised to deal with one-half day which was deducted from the Grievor's sick leave bank in error and with respect to matters of implementation. 6, "F~ /:::::),,~ ~z.. DATED AT TORONTO, this day of F~~ry, 2001. Chair See Dissent Attached College Nominee See Addendum Attached Union Nominee DISSENT OF R.J. GALLIVAN It is well established that employees with personal responsibilities outside the workplace are expected to arrange their affairs so as to be able regularly to report for work. In some cases, collective agreements give employees time off with pay to look after family members who are ill. In the College system the Academic collective agreement specifically contains such a provision but the Support Staff contract covering the grievor does not. Both agreements were put to this Board in evidence and the union contended that the difference between the two contracts should result in the Support agreement being accorded a more liberal interpretation to overcome the shortfall. That of course is hardly a valid reason for ignoring the significant difference between the two contracts. The Support agreement grants leave without pay (Art.12.1) for "legitimate personal reasons", and leave with pay (Art.12.2) "in extenuating personal circumstances...at the discretion of the College ...and such (leave) shall not be unreasonably denied" As arbitrator O'Shea found in Confederation College and OPSEU: It is noted that the parties have agreed in Article 10.01 (now 12.1) that leave of absence "without pay" may be granted for "legitimate personal reasons". It therefore follows that not all legitimate personal reasons for which leave may be granted were intended by the parties to constitute "extenuating personal circumstances". In my view common childhood illnesses may be a legitimate personal reason for absence from work but are not so unexpected or unusual as to fall within the meaning of "extenuating personal circumstances" I do not believe it to be the intent of the Support agreement that the cost of ieave with pay for an employee to look after children with common illnesses is to fall on the College. The jurisprudence supports that view. See for example Fanshawe College and OPSEU, grievance of Skinner (MacDowell): Words like "special" or "extenuating" suggest something out of the ordinary, and the ~egr~ to which the grievor's situation is, indeed, extraordinary might assist us in measuring the "reasonableness" of the employer's response. Looking after a sick spouse/child would not seem on the surface to b~ so unusual .... (emphasis in original). It is clear from the evidence that the College gave full consideration to the grievor's need for time off (the fact that she would be granted leave for "legitimate personal reasons" proves that). It is also clear that the College assessed whether or not the alleged "extenuating personal circumstances" were such as to warrant converting the leave to one with pay. The College does not have a pre-determined policy for administering Articles 12.1 or 12.2 nor even general guide- lines, but does attempt in the interest of even-handed treatment of employees to apply the Articles with some consistency so that the appearance of favouritism or undue response to squeaky wheels is avoided. Again that accords with the jurisprudence: Of course the laying down of general guidelines and principles for future action by a statutory decision- maker is not objectionable so long as he still considers the merits of each individual matter for decision in the light of those guidelines and principles and is prepared ~o admit of exceptions to the general policy in appropriate cases. (re Mm~dow Park Nursing Home and SEIU (Swan) 9LAC (3d)). That is precisely what Ms. Goheen did on behalf of the College in this case - she considered the merits of the grievor's circumstances for each of the three disputed days and judged common childhood illness not to be so unusual or extenuating as to warrant leave with pay. Was that College judgement "unreasonable"? The Concise Oxford Dictionary defines "unreasonable" as "not heeding reason". That definition is converted into practice in decisions such as the above Meadow Park Nursing Hom~ award where the arbitrator posed the issue as: Even if the decision-maker in question takes into account all relevant factors and does not take into account any - 3 - extraneous considerations, he may still be subject to review on the basis that the decision or conclusion ultimately reached was so unreasonable that no reasonable authority could ever have come to it. Was the College's decision in our case so unreasonable that no reasonable person could ever come to it? I believe the correct answer to that question in our case is "no" Thus the College's reasonable decision should not be interfered with by an arbitration board. Two rational decision-makers can exercise their judgement in good faith and come to different decisions on the same set of circumstances. That doesn't make one of the decisions "reasonable" and the other not. To be overturned by an arbitrator a decision by a manager under Article 12.2 of the contract must be "unreasonable", a decision "not heeding reason". That does not characterize the manager's decision in this case. In such circumstances an~ arbitration board should not substitute its judgement for ~he decision-maker's even if the board members might themselves have made a different decision'.'-As the arbitrator said in Loyalist College and OPSEU, grievance of Novroski (Brown): The issue is ~hot whether the Boar~-would have decided differently but whether the Employer...exercised its discretion properly and in accordance with Article 12.2 In my view the College made a reasonable decision which in the circumstances should warrant dismissal of the grievance. Addendum This member concurs with the reasoning of the Chair, specifically that the grievor is entitled to be reimbursed for the two half days she needed to care for her children. It was this member's understanding that on Monday morning, March 27th, the grievor stayed home to look after her children because she had exhausted her resources. Evidently, this was not the understanding of the other two Board members. However, in this member's view, the circumstances fell within the meaning of the contractual language and the reasoning of the Chair, and indeed within the jurisprudence offered by Union counsel. Accordingly, this member would have upheld the grievance in its entirety.